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Court of AppealPartially AllowedCivil Appeal No. 199 of 2017· [2017] KECA 418 (KLR)

Fredrick Odhiambo Oyugi v Orange Democratic Movement & 2 others [2017] KECA 418 (KLR)

Court of Appeal of Kenya
21 July 2017
HOH. M. OkwenguSKS. Gatembu KairuAMA. K. Murgor
460 words in judgment
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The bottom line

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Kenya's Court of Appeal ordered the IEBC to rehear an ODM nomination complaint on its merits, overturning a High Court ruling just weeks before the 2017 election.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi arising from a dispute over the Orange Democratic Movement nomination for the Member of the National Assembly seat for Embakasi North Constituency. The appellant, Fredrick Odhiambo Oyugi, and the second respondent, Jane Wangui, both sought the party's nomination in an exercise conducted on 30th April 2017. The appellant claimed he won, was declared winner by the party's Returning Officer, and received a provisional certificate on 30th April 2017 and a final nomination certificate on 3rd May 2017. The dispute travelled from the Political Parties Dispute Tribunal to the High Court, which on 22nd June 2017 (Kimaru, J) decided against the appellant in Election Petition Appeal No. 113 of 2017. On the appellant's further appeal, the Court of Appeal (Okwengu, Gatembu Kairu and Murgor, JJ.A), citing the urgency created by the imminent General Election of 8th August 2017, delivered its decision without reasons under Rule 32(5) of the Court of Appeal Rules. It allowed prayers (a) and (b) of the appeal, set aside the High Court judgment, and substituted an order remitting the appellant's complaint of 5th June 2017 to the IEBC for re-hearing and determination on the merits within 48 hours. Prayers (c), (d) and (e) were declined, each party was to bear its own costs, and reasons were reserved for 29th September 2017. The appeal was therefore only partially successful.

Key legal issues

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01

Whether the High Court judgment in the party nomination dispute should stand

Holding

The Court allowed prayers (a) and (b) of the appeal and set aside the High Court judgment, substituting an order remitting the complaint to the IEBC for a fresh hearing on the merits within 48 hours, owing to the proximity of the General Election

Reasoning

The dispute over the ODM nomination for Embakasi North Constituency had escalated from the Political Parties Dispute Tribunal to the High Court and then to the Court of Appeal. Because the IEBC was printing ballot papers for the General Election scheduled for 8th August 2017, the Court exercised urgency under Rule 32(5) of the Court of Appeal Rules, delivered its decision without full reasons, allowed the appeal in part, and remitted the complaint to the IEBC. Prayers (c) to (e) were declined and reasons were reserved for 29th September 2017.

p. 2

Legal principles established

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  • Where a High Court judgment in a nomination dispute is set aside, the underlying complaint may be remitted to the IEBC for re-hearing and determination on the merits, and a time limit may be imposed where the General Election is imminent

Court orders

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  1. 1.Prayers (a) and (b) of the appeal allowed
  2. 2.The judgment of the High Court delivered on 22nd June 2017 set aside and substituted with an order remitting the appellant's complaint dated 5th June 2017 back to the IEBC for re-hearing and determination on merits within 48 hours of delivery of the judgment
  3. 3.Prayers (c), (d) and (e) in the appellant's memorandum of appeal dated 27th June 2017 declined
  4. 4.Each party to bear their own costs in the appeal
  5. 5.Reasons for the decision reserved to be delivered on 29th September 2017

Authorities

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Legislation

  • Court of Appeal RulesRule 32(5)
On appeal from
High Court of Kenya at Nairobi
Election Petition Appeal No. 113 of 2017
Jurisdiction invoked
Appeal from the High Court under the Court of Appeal Rules; decision delivered under Rule 32(5) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fredrick Odhiambo Oyugi v Orange Democratic Movement & 2 others [2017] KECA 418 (KLR)", Case Analysis (2017). Civil Appeal No. 199 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/418/eng@2017-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.